The opinion of the court was delivered by: WEINFELD
This action is brought under the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., to review (1) an order of deportation issued by the Commissioner of Immigration and Naturalization; (2) the denial by the Board of Immigration Appeals of plaintiff's application for suspension of the said order of deportation; and (3) for judgment declaring the proceedings which resulted in the order of deportation and all action thereunder null and void.
The matter is before the Court on plaintiff's application for a temporary injunction pending a trial of the issues, to enjoin the District Director of Immigration and Naturalization at the Port of New York from arresting him or otherwise taking action under the order of deportation or any warrant issued thereunder.
The plaintiff is an alien of Greek nationality who entered this country as a seaman on November 4th, 1931, and has resided here continuously ever since. On December 9th, 1939 he was arrested on a warrant charging him with remaining in the United States beyond the time permitted by law and was admitted to bail. A hearing was held, following which an order and warrant of deportation was issued on July 3rd, 1940. On July 17th, 1945 an attorney representing the plaintiff appeared before the Board of Immigration Appeals and applied for the privilege of voluntary departure in lieu of deportation pursuant to section 19(c) of the Act of February 5, 1917, 8 U.S.C.A. § 155(c)(1), and the additional privilege of pre-examination, and also requested that the warrant of deportation be withdrawn. This application was granted, and on July 20th, 1945 an order was entered which directed (1) that the outstanding order and warrant of deportation be withdrawn and (2) that the proceeding be reopened to permit plaintiff to apply for voluntary departure and pre-examination. On October 15th, 1945, plaintiff filed written Form I-255 for such voluntary departure and pre-examination, as required by 8 C.F.R. 150.6(g). Exhibit 2, hearing, November 14th, 1947.
The hearings for such discretionary relief were not held until November 14th and December 22nd, 1947. At the first hearing plaintiff testified that it was his intention when he deserted his vessel to remain here permanently. The presiding inspector, pursuant to Federal Regulations, thereupon lodged an additional charge that at the time of entry he was an immigrant not in possession of a valid visa. 8 C.F.R. 150.6(1).
On December 29th, 1947 the inspector found that the plaintiff was subject to deportation on the charge made at the hearing but not on the original charge, and recommended deportation. He also reported adversely on plaintiff's application for voluntary departure and pre-examination.
The inspector's recommendations were upheld by the Commissioner and an order entered thereon on January 5th, 1949 and a warrant issued directing plaintiff's deportation to Greece. An appeal was taken therefrom to the Board of Immigration Appeals. The appeal was not heard until May 15th, 1949, when plaintiff's counsel upon the oral argument applied for a suspension of the order of deportation under Section 19(c)(2) of the Immigration Act of 1917, as amended. 8 U.S.C.A. § 155(c)(2). The amendment which became effective July 1st, 1948, and so was not available to plaintiff at the time of the hearings in November and December 1947, enlarged the class of those eligible for suspension of deportation to include aliens who had resided continuously in the United States for seven years or more.
The Board on June 24th, 1949 denied the request for relief under Section 19(c) (2) and also dismissed the appeal from the Commissioner's order.
On September 28th, 1950 a warrant of deportation was served upon plaintiff and he was ordered to surrender himself at Ellis Island on November 1st, 1950 for immediate departure to Greece. The present suit was then instituted against the District Director of Immigration and Naturalization at the Port of New York.
The plaintiff challenges the order of deportation as invalid on the grounds that (1) the hearings of November 14th and December 22nd, 1947 did not comply with the provisions of the Administrative Procedure Act then in force and effect in that judicial and prosecutive functions were vested in the same person; (2) that the denial of his application for suspension of deportation under Section 155(c)(2) was an illegal abuse of discretionary power; further, that he was denied a hearing thereon in violation of due process; (3) the deportation of plaintiff to Greece might well subject him to serious physical persecution and is, therefore, a violation of the Federal Constitution and the provisions of 8 U.S.C.A. § 156, as last amended by Section 23 of the Internal Security Act of 1950.
The government urges various objections to the plaintiff's motion, amongst others, that a writ of habeas corpus is the sole judicial remedy available to the plaintiff. That one resisting an order of deportation is no longer confined to habeas corpus but may maintain a declaratory judgment suit after having exhausted administrative remedies is no longer open to question. However, the maintenance of such an action is not absolute but is dependent upon 'the existence of a justiciable case or controversy'. McGrath v. Kristensen, 340 U.S. 162, 71 S. Ct. 224.
Plaintiff is seeking an injunction pendente lite, which, if granted, would stay all proceedings for deportation until a trial of the action has been had. Section 10 of the Administrative Procedure Act authorizes this relief where it is necessary to prevent irreparable injury. It may be conceded that if the order of deportation is null and void an arrest on a warrant issued thereunder is irreparable injury and it is no answer to suggest that a party subject himself to arrest and then seek redress by means of the ancient writ of habeas corpus. On the other hand, if the order of deportation and the proceedings on which it is based are valid there can be no claim of irreparable injury.
A stay is not to be granted as a matter of course or as a mere incident to an action for declaratory judgment. It is a cardinal principle of equity jurisprudence that a preliminary injunction shall not issue in a doubtful case. Hall Signal Co. v. General Railway Signal Co., 2 Cir., 153 F. 907. The discretionary power of the Court may be exercised in support of the drastic remedy of an injunction pendente lite only when it appears with reasonable certainty that plaintiff is entitled to the ultimate relief for which the action is brought. This requires an analysis of plaintiff's contentions.
Plaintiff first challenges the order of deportation for lack of compliance with the Administrative Procedure Act, effective September 11th, 1946. The latter Act has been held applicable to deportation proceedings. Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S. Ct. 445, 94 L. Ed. 616. It may be conceded that the same person acted as presiding officer and examiner at the hearings conducted on November 14th, 1947 and December 22nd, 1947. However, Section 12 of the Act provides '* * * no procedural requirement shall be mandatory as to any agency proceeding initiated prior to the effective date of such requirement.' Hence, the basic question is whether the Act was applicable at the time of the hearings herein.
It is not necessary for the purposes of this motion to determine whether the proceeding had been initiated by the issuance of the warrant on the original charge on December 9th, 1939. The issue may be narrowed by limiting consideration to July 20th, 1945, the date of the ...